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The Making Available Right in the United States: A Report of the Register of Copyrights
Citation U.S. Copyright Office, The Making Available Right in the United States: A Report of the Register of Copyrights (Feb. 28, 2016) (full-text). Overview In accordance with the congressional assignment that triggered this study, the Copyright Office focused its review of the legal landscape on three key issues. These are: "(1) how the existing bundle of rights under Title 17 covers the making available . . . right[] in the context of digital on‐demand transmissions such as peer‐to‐peer networks, streaming services, and music downloads, as well as more broadly in the digital environment; (2) how foreign laws have interpreted and implemented the relevant provisions of the WIPO Internet Treaties; and (3) the feasibility and necessity of amending U.S. law to strengthen or clarify our law in this area." Based on all of these considerations, the Copyright Office reached the following conclusions: * Consistent with its prior analyses and testimony, as well as the views of Congress, multiple Administrations, appellate courts, and leading academic authorities, the Copyright Office concluded that the exclusive rights of copyright owners set forth under 17 U.S.C. §106 collectively meet and adequately provide the substance of the making available right. * Consistent with the plain language of the Treaties, which defines the making available right in terms of whether members of the public "may access" a copyrighted work, U.S. law should be read to include the offer of public access, including through on‐ demand services, without regard to whether a copy has been disseminated or received. Doing so is also consistent with the judicial opinions of foreign jurisdictions on this point. * Within the particular context of downloads, U.S. law provides the making available right through the exclusive right of distribution under Section 106(3). While some courts have failed to find distribution in the absence of evidence of completed transfers, and therefore declined to recognize claims based solely on making copies available to the public for download, the Copyright Office concluded that the appropriate reading of Section 106(3) in the context of making available claims is that it covers offers of access. * Within the context of Internet streaming or the display of an image online, the United States provides the making available right through the rights of public performance and public display under Section 106(4)-(6), respectively. Moreover, in the context of on‐demand transmissions, the Supreme Court’s Aereo decision confirms that the public performance right covers transmissions to the public via individualized streams. Further still, where an act of file sharing or streaming involves the creation of a digital copy of a work, it also may implicate the right of reproduction under Section 106(1). * Although the United States’ approach to the making available right differs from that of its treaty partners, the majority of which have implemented the right through a broadly worded right to communicate copyrighted works to the public, both approaches are reasonable and effective, and indeed, both are sanctioned by the treaty language. It would not necessarily be beneficial for the United States to amend its approach by enacting a separate making available or communication‐to‐the‐public right at this time, for example to respond to disparate court opinions or to confirm the application of the Treaties to new and emerging online activity. On the contrary, such an endeavor would likely prove more disruptive, not less, to the rule of law in this area. Category:Publication Category:Copyright Category:2016